Citation Nr: 0203138
Decision Date: 04/05/02 Archive Date: 04/11/02
DOCKET NO. 01-02 510 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
1. Entitlement to an increased rating for dermatitis,
currently rated as 10 percent
disabling.
(The issue of entitlement to service-connection for
adjustment disorder (claimed as
depression), secondary to service-connected dermatitis, will
be the subject of a later decision.)
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Tanya A. Smith, Associate Counsel
INTRODUCTION
The veteran had active service from July 1979 to September
1979.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a February 2000 rating decision of
the Department of Veterans Affairs (VA), Regional Office (RO)
in Cleveland, Ohio.
The Board is undertaking additional development on the issue
of entitlement to service-connection for adjustment disorder
(claimed as depression), secondary to service-connected
dermatitis, pursuant to authority granted by 67 Fed. Reg.
3,099, 3,104 (Jan. 23, 2002) (to be codified as amended at 38
C.F.R. § 19.9(a)(2)). When it is completed, the Board will
provide notice of the development as required by Rule of
Practice 903. See 67 Fed. Reg. 3,099, 3,105 (Jan. 23, 2002)
(to be codified as amended at 38 C.F.R. § 20.903.) After
giving notice and reviewing any response to the notice, the
Board will prepare a separate decision addressing this issue.
The Board notes that in the veteran's December 1999
statement, he inquires whether he can receive back
compensation from the time when he first filed his claim for
service-connection of a rash in 1980. This inquiry can be
construed as an informal claim for entitlement to an earlier
effective date for the service-connected dermatitis.
Accordingly, the Board refers this matter to the RO for any
action deemed necessary.
FINDINGS OF FACT
1. The veteran has been notified of the evidence necessary to
substantiate his
claim, and the RO has obtained all relevant evidence
necessary for an equitable disposition of this appeal.
2. The veteran's service-connected dermatitis does not
manifest constant exudation
or itching, extensive lesions, marked disfigurement,
ulceration, extensive exfoliation, crusting, systemic or
nervous manifestations, or exceptional repugnance.
CONCLUSION OF LAW
The criteria for a rating in excess of 10 percent for
dermatitis have not been met. See 38 U.S.C.A. §§ 1155, 5103,
5103A, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 4.1-4.14,
4.27, 4.118, Diagnostic Code 7806 (2001); 66 Fed. Reg.
45,620-32 (Aug. 29, 2001) (to be codified at 38 C.F.R. §
3.159).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
During the pendency of this appeal, there was a change in the
law pertaining to veteran's benefits. On November 9, 2000,
the President signed into law the Veterans Claim Assistance
Act of 2000 (VCAA), which redefines the obligations of VA
with respect to the duty to assist and includes an enhanced
duty to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits. See 38
U.S.C.A. §§ 5103, 5103A (West Supp. 2001). To implement the
provisions of the law, VA promulgated regulations published
at 66 Fed. Reg. 45,630-32 (Aug. 29, 2001) (to be codified as
amended at 38 C.F.R. § 3.159). This act and implementing
regulations set forth requirements for assisting a claimant
in developing the facts pertinent to his or her claim.
The Board finds that even though this law was enacted during
the pendency of
this appeal, and thus, has not been considered by the RO,
there is no prejudice to the veteran in proceeding with this
appeal, as the requirements under the new laws and
regulations have been substantially met. See Bernard v.
Brown, 4 Vet. App. 384, 394 (1993) (providing that when the
Board addresses a matter not addressed by the RO, the Board
must provide an adequate statement of reasons and bases as to
why there is no prejudice to the veteran). The Board finds
that the veteran was provided adequate notice as to the
evidence needed to substantiate his claim and the reasons the
claim was denied. The RO provided the veteran with a copy of
the February
2000 rating decision as well as the March 2000 Statement of
the Case and the
February 2001 Supplemental Statement of the Case. The RO has
also made satisfactory efforts to ensure that all relevant
evidence has been associated with the claims file. The
veteran was afforded a VA examination in October 2000. The
RO requested, obtained, and reviewed medical records from the
Ohio Department of Mental Health. The veteran was also
afforded a personal hearing before a Member of the Board in
January 2002. The veteran has not made the RO or the Board
aware of any other evidence needed to be obtained. Based on
the foregoing, the Board concludes that the duty to assist
has been satisfied, and the Board will proceed with appellate
review.
Disability ratings are determined by applying the criteria
set forth in VA's Schedule for Rating Disabilities, which is
based on the average impairment of earning capacity.
Individual disabilities are assigned separate diagnostic
codes. See 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1.
Where an increase in an existing disability rating based on
established entitlement to compensation is at issue, the
present level of disability is the primary concern. See
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If two
evaluations are potentially applicable, the higher evaluation
will be assigned if the disability picture more nearly
approximates the criteria required for that rating;
otherwise, the lower evaluation will be assigned. See 38
C.F.R. § 4.7.
A review of the record shows that by rating decision dated in
September 1980, the RO granted service-connection for
dermatitis (undetermined etiology) and assigned a
noncompensable rating, effective from September 1979. In
March 1998, the veteran submitted a request for an increased
rating. The veteran was afforded a VA examination in April
1998 and VA outpatient treatment reports were reviewed.
A January 1998 VA record noted continuing skin problems.
The report on the April 1998 VA examination shows the veteran
complained of itching without use of medication. Physical
examination revealed mostly well demarcated hypopigmented
lesions on the veteran's back. There were no signs of
inflammation or scaling in the lesions. On the anterior
aspect of the veteran's upper arms, there was diffuse
hypopigmentation. Posteriorly, there were well demarcated
hypopigmented lesions. Gluteal areas as well as the anterior
and posterior aspects of both thighs showed several
hypopigmented lesions. Both legs in the lower third on the
anterior aspect showed an isolated hypopigmented lesion. The
face was free of any lesions. Color photographs of the
veteran's body were taken. Diagnosis was hypopigmentation
generalized, etiology unknown.
By rating decision dated in May 1998, the RO increased the
rating to 10 percent disabling, effective from January 1998.
In August 1998, the veteran submitted a request for an
increased rating and complained of constant scratching. In
November 1999 and December 1999 statements, the veteran
complained of scratching his skin until it bled and described
the sensation of feeling bugs under his skin.
Additional VA outpatient treatment records dated from July
1998 to August 1998 were associated with the file. A July
1998 record shows the veteran complained of itching at night.
The appealed February 2000 RO rating decision continued the
10 percent rating based on no new specific findings related
to the veteran's skin condition noted on the additional
evidence. The veteran complained of constant itching
controlled by medication in a February 2000 statement. In
March 2000, the veteran's mother submitted a statement in
which she indicates that the veteran's skin breaks out and
that sometimes it is so terrible that he has spots. The
veteran filed a Notice of Disagreement in March 2000 and
indicated that people asked him why he always scratches. He
continues to indicate that he finds himself scratching his
skin until it bleeds. The RO issued a Statement of the Case
in March 2000 confirming its prior decision on the basis that
the additional evidence received was not medical evidence
describing the current skin symptoms or a diagnosis of the
current condition.
June 2000 medical records from the Ohio Department of Mental
Health were associated with the claims file. The records
show the veteran complained of itching and burning.
The veteran was afforded a VA examination in October 2000.
The report shows the veteran complained of itchiness of his
skin and that he did not always take his medications. He
reported that he was not currently using any creams or taking
any medications. Symptoms of occasional itchiness and pain
were noted. There was no ulceration or crusting of the skin
noted on examination. There were no outstanding nervous
manifestations. He indicated that when his skin felt like it
was crawling, he had itchiness and pain at that time. No
current itchiness or pain of his arms or back was noted.
Physical examination revealed the veteran's skin's turgor was
normal with no signs of dehydration, anemia, stasis ulcers,
or pedal edema. The examiner noted no current crusting or
itchy areas of the skin as the veteran claimed in the past.
Color photographs were not taken as there was no current
scabs or crusting of the skin areas. Diagnosis was history
of eczema.
The RO issued a Supplemental Statement of the Case in
February 2001 confirming its prior decision on the basis that
recent evidence showed some improvement in the condition but
sustained improvement was not definitively established and
pursuant to 38 C.F.R. 3.344, evaluation of the veteran's skin
condition was continued at 10 percent disabling. The veteran
filed a Substantive Appeal in February 2001.
In the October 2001 Statement of Accredited Representation,
the service representative indicates the veteran complains of
constant itching, scratching until his skin bleeds, and
showering three to five times a days due to the feeling of
bugs crawling under his skin.
The veteran presented testimony on his skin condition at a
videoconference hearing held before a Member of the Board in
January 2002. The veteran testified that his skin condition
had worsened as lost pigmentation in areas on his back,
buttocks, and his legs had become larger. He indicated that
there were no pimple-like bumps over the areas. He testified
the areas were sensitive, especially when he showered and
medication alleviated the itching and stopped him from
scratching. He also testified that he used one tube of
medication a week. In response to a question of whether his
skin condition always stayed the same or flared up, the
veteran testified that "[a] lot of times the spots spread
out" and when he stopped drinking, the formerly light spots
turned from dark back to light. The veteran indicated that
there was never any discharge from the sores except for blood
when he scratched them. The veteran testified that he used
medication every day after he showered.
The veteran's service-connected dermatitis is currently
assigned a 10 percent rating under the provisions of 38
C.F.R. § 4.118, Diagnostic Code 7806, which prescribes a 10
percent rating for eczema with exfoliation, exudation or
itching, if involving an exposed surface or extensive area, a
30 percent rating for constant exudation or itching,
extensive lesions, or marked disfigurement, and a 50 percent
rating for ulceration or extensive exfoliation or crusting,
and systemic or nervous manifestations, or exceptionally
repugnant.
Based on a review of the evidence of record, the Board finds
that the veteran's disability picture more closely
approximates the criteria for the currently assigned 10
percent rating under Diagnostic Code 7806, and that the
preponderance of the evidence is against assignment of a
rating in excess of 10 percent at this time. Clinical
findings reported on the October 2000 VA examination report
indicate the veteran's skin condition continues to lack
constant exudation or itching, extensive lesions, or marked
disfigurement, or manifests other symptoms which would
warrant a rating in excess of 10 percent under Diagnostic
Code 7806. Subjective complaints and objective findings
revealed the following: no ulceration, crusting, or scabs of
the skin; no outstanding nervous manifestations; occasional
itchiness and pain; no current itchiness or pain of the arms
or back during the examination; and normal skin turgor with
no signs of dehydration, anemia, stasis ulcers, or pedal
edema. Most notably, the veteran was diagnosed with history
of eczema. The veteran's mother described the veteran's
symptoms in terms of flare-ups as opposed to a constant
condition in her March 2000 statement. The Board notes that
the foregoing findings are consistent with later evidence of
record. Testimony elicited from the veteran in January 2002
confirms that the veteran's hypopigmented lesions do not
spontaneously secrete discharge. Rather, as the veteran has
reported various times, his hypopigmented lesions bleed after
he extensively scratches them. While the veteran has
reported that he constantly itches according to various
statements and the service representative's October 2001
statement, the Board finds that the veteran's itching is
manageable through consistent use of the medication
prescribed to him. The veteran has indicated that the
itching is controlled by medication according to his February
2000 statement. During the October 2000 VA examination, the
veteran complained of itchiness but he also reported that he
did not always take his medications and that he was not
currently using any creams or taking any medications. The
Board finds that the veteran's overall disability picture, as
described above, more closely approximates the criteria for
the currently assigned 10 percent, but no higher.
The Board has also considered other diagnostic codes for
purposes of determining whether the veteran may be entitled
to a rating in excess of 10 percent under any of them. None
are applicable.
The Board finds that as the preponderance of the evidence is
against the claim, the benefit-of-the-doubt doctrine is not
applicable, and the increased rating claim must be denied.
See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App.
49 (1990).
The Board has also considered the veteran's case for
assignment of an extraschedular rating pursuant to 38 C.F.R.
§ 3.321(b). The veteran has made no contention that his
service-connected dermatitis has interfered with his
employment or seeking employment. There is no evidence of
record that the veteran's service-connected dermatitis causes
marked interference with employment (i.e., beyond that
already contemplated in the assigned evaluation), or
necessitated any frequent periods of hospitalization, such
that application of the regular schedular standards is
rendered impracticable. Moreover, the Board emphasizes that
the percentage ratings assigned by the VA Schedule for Rating
Disabilities represent the average impairment in earning
capacity resulting from a service-connected disability.
38 C.F.R. § 4.1. In the present case, to the extent that the
veteran's dermatitis interferes with his employability, the
currently assigned 10 percent rating adequately contemplates
such interference, and there is no evidentiary basis in the
record for a higher rating on an extraschedular basis.
Hence, the Board is not required to remand this matter to the
RO for the procedural actions outlined in 38 C.F.R. §
3.321(b)(1) for assignment of an extraschedular evaluation.
See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd
v. Brown, 9 Vet. App. 88, 96 (1996).
ORDER
A rating in excess of 10 percent for dermatitis is denied.
John E. Ormond, Jr.
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.